TEXAS ETHICS COMMISSION

ETHICS ADVISORY OPINION NO. 162

September 2, 1993

Questions regarding persons who assist a lobbyist and reporting requirements for
living expenses in Austin. (AOR-162)

This request for an ethics advisory opinion raises a number of questions about the
lobby law, chapter 305 of the Government Code. The first questions have to do with the
requirements applicable to a person who assists a registered lobbyist.

Persons Who Assist a Registrant

Under the lobby law any person who meets either one of two thresholds must
register as a lobbyist. Gov't Code § 305.003(a). One of the thresholds, the expenditure
threshold, provides that a person must register if the person

makes a total expenditure of an amount determined by commission rule but not less than
$200 in a calendar quarter, not including the person's own travel, food, or lodging
expenses or the person's own membership dues, on activities described in Section
305.006(b) to communicate directly with one or more members of the legislative or
executive branch to influence legislation or administrative action.

Id. § 305.003(a)(1). The other threshold, the compensation threshold, provides
that a person must register if the person

receives compensation or reimbursement, not including reimbursement for the person's
own travel, food, or lodging expenses or the person's own membership dues, of more than an
amount determined by commission rule but not less than $200 in a calendar quarter from
another person to communicate directly with a member of the legislative or executive branch
to influence legislation or administrative action.

Id. § 305.003(a)(2).

A person required to register as a lobbyist must fill out a registration form and
provide specified information, id. § 305.005(a), including information about
"each person employed or retained by the registrant for the purpose of assisting in
direct communication with a member of the legislative or executive branch to influence
legislation or administrative action," id. § 305.005(f)(5). An Ethics
Commission rule further explains that requirement:

(a) For purposes of the Government Code, § 305.005(f)(5), persons employed or
retained by the registrant to assist in direct communication with a member of the
legislative or executive branch include other registrants and persons who provide
administrative or research assistance to the registrant, but not persons whose assistance
is clerical in nature.

(b) A person employed by the same employer as the registrant and who assists the
registrant in lobby activities at the direction of the registrant is employed or retained
by the registrant for purposes of the Government Code, § 305.005(f)(5). A client of a
business entity is not an employer for the purposes of this subsection.

1 T.A.C. § 40.9 (emphasis added). This rule makes clear that a person who is himself
registered as a lobbyist may be required to be named on another lobbyist's registration as
an assistant. If a person meets one of the registration thresholds and does not fit within
any of the exceptions to required registration, he must register. The fact that he is
named as an assistant on another lobbyist's registration does not relieve him of the
requirement to register. Further, the fact that a person's communications are at the
request of another registrant does not relieve a person of the requirement to register. Butsee 1 T.A.C. § 40.7(a)(3) (clerical assistance does not require registration).

Attribution of Expenditures

A person registered as a lobbyist must file an activities report, which sets out
certain categories of expenditures made to communicate to influence legislation or
administrative action. Gov't Code § 305.006. "The report must also include
expenditures for the direct communications under [six different categories] that other
people made on the registrant's behalf if the expenditures were made with the registrant's
consent or were ratified by the registrant." Id. § 305.006(b). Because of the
requirement that a registrant report certain expenditures made on his behalf, it is
possible that a registrant may need to report an expenditure made by an
assistant. The
registrant is not required to report an expenditure made by an assistant, however, if the
assistant is himself registered as a lobbyist and reports the expenditure. Double
reporting of expenditures is not required. Ethics Advisory Opinion No. 48 (1992).

Living Expenses in Austin

The request also describes the following circumstances and raises a number of questions
about the applicable reporting requirements:

A registered lobbyist permanently resides in a geographical region of the state several
hours from Austin. For convenience, the lobbyist resides in an apartment in Austin for one
year during the legislative session in order to conduct lobbyist activities and
other activities on behalf of the corporation for whom the employee works. The registered
lobbyist pays for all utilities. The corporation, which is not registered as a lobbyist,
pays for the lease of the apartment directly; the corporation reimburses the lobbyist for
his/her utility expenses. The lobbyist also purchases groceries for his/her stay in the
apartment. The lobbyist does not spend 100% of his/her time in Austin transacting lobbyist
activities. Rather, the lobbyist conducts other corporation-related business while in
Austin. The assistants of the lobbyist utilize the apartment while in Austin to assist the
lobbyist. Other employees of the corporation also utilize the apartment when they are in
Austin for non-lobbyist activities.

The request letter asks whether the registered lobbyist must report any portion of the
apartment rent, any portion of the utilities, or any portion of the groceries as lobby
expenditures.

As background, it is important to note that a person's own food, transportation, and
lodging are not considered in determining whether a person has crossed either of the lobby
registration thresholds. Gov't Code § 305.003(a).1 Once a person is registered, however, he must report his
expenditures for his own food, transportation, and lodging if they are made to

communicate directly with a member of the legislative or executive branch to
influence legislation or administrative action. Id. § 305.006(b).2 Generally, whether an expenditure is made to communicate to influence is a
fact question. A registrant who establishes a residence in Austin is not required,
however, to report basic living expenses unless the expenses are directly connected with
communications to influence, such as the rental of an apartment for the purpose of
conducting meetings with legislators or other officials. See generally Ethics
Advisory Opinion No. 136 (1993).

SUMMARY

The fact that a person is named as an assistant on another person's lobby registration
does not relieve the assistant of the requirement to register as a lobbyist if he
independently meets one of the registration thresholds.

A lobby registrant is not required to report lobby expenditures made by an assistant if
the assistant is himself registered as a lobbyist and reports the expenditures.

A registrant who establishes a temporary residence in Austin is not required to report
expenditures for the registrant's basic living expenses unless the expenses are
directly connected with communications to influence. Whether an expenditure is made in
order to communicate to influence is generally a fact question.

1The requestor also asks whether the
corporation is required to register as a lobbyist because it pays the apartment rent and
reimburses its registered employee for utilities and groceries. A corporation may be
required to register under the expenditure threshold. Gov't Code § § 305.002(8)
("person" includes corporation), 305.003(a) (registration thresholds apply to
"person"); Ethics Advisory Opinions Nos. 93, 92,
91, 90, 89 (1992) (regarding
lobby registration by entities). Ethics Advisory Opinion No. 89 explains the circumstances
in which lobby expenditures are attributable to an entity. Expenditures for the food and
lodging of an employee who is a registrant, however, would be expenditures for the
corporation's own food and lodging since a corporation can act only through natural
persons. Therefore, such expenditures would not, by themselves, require the corporation to
register as a lobbyist.

2The request
letter asks whether this response would differ if the legislature was not is session. It
would not.